The Ultimate Legal Challenge / Local litigator Mike Trinh took on a Guantanamo case pro bono. He's been lucky to get access to his client, let alone any information on the circumstances of his arrest or the charges involved

� TRINH_054_RAD.jpg SHOWN: Mike Trinh is a 27-year-old lawyer working for Orrick, a law firm in San FRancisco, who began defending a detainee at Guantanamo prison camp during his first year out of law school. The story is about difficulties inherent in representing that kind of client when the legal system doesn't work the way you learned it's supposed to. These pictures were made in San Francisco, CA. on Tuesday, May 1, 2007. (Katy Raddatz/The Chronicle) ** Mandatory credit for the photographer and the San Francisco Chronicle. No sales; mags out.

Photo: Katy Raddatz

� TRINH_054_RAD.jpg SHOWN: Mike Trinh is a 27-year-old lawyer...

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In this June 26, 2006 file photo, reviewed by US military officials, a detainee, name, nationality, and facial identification not permitted, holds onto a fence as a U.S. military guard walks past, within the grounds of the maximum security prison at Camp 5, at the Guantanamo Bay U.S. Naval Base, Cuba. President George W. Bush on Wednesday Sept. 6 acknowledged the existence of CIA prisons around the world, and said 14 high-value terrorism suspects, including the mastermind of the Sept. 11 attacks, have been transferred from this system to the military prison at Guantanamo Bay for eventual trials. (AP Photo/Brennan Linsley, Pool)
Ran on: 09-08-2006
A detainee holds onto a fence at the Guantanamo Bay detention center, which took custody of prisoners from CIA facilities this week.
Ran on: 09-08-2006
A detainee holds onto a fence at the Guantanamo Bay detention center, which took custody of prisoners from CIA facilities this week. FILE PHOTO FROM JUNE 26 2006 TO BE MOVED SEPT 6. EDS: PHOTO HAS BEEN REVIEWED BY US MILITARY OFFICIALS

Photo: BRENNAN LINSLEY

In this June 26, 2006 file photo, reviewed by US military...

The Ultimate Legal Challenge / Local litigator Mike Trinh took on a Guantanamo case pro bono. He's been lucky to get access to his client, let alone any information on the circumstances of his arrest or the charges involved

The first time Mike Trinh met his client Adham Mohammed Ali Awad in prison at Guantanamo Bay, Cuba, the young man sat at a table, his limbs in handcuffs and leg-irons secured to a hook in the floor. Awad, at just over 5 feet tall, with narrow shoulders, had little meat on his bones.

Trinh and a colleague from his Bay Area law firm introduced themselves through their translator and explained that they were there to represent the Yemeni. But Awad, who'd been imprisoned four years without being charged with a crime and whose primary visitors until then had been FBI interrogators, refused to meet their eyes. Instead he stared at the ground, his head bowed so low Trinh could see only the top.

The lawyers pulled out some food they'd brought -- dates and baklava that Awad's mother had told them would appease her 25-year-old son's sweet tooth. He politely ate a date but wouldn't look up.

Then Trinh produced a bag of chocolates filled with Kit Kats, Snickers bars, Hershey's -- two of every candy the lawyers had found at an airport newsstand on their way to the prison. Awad, his head only slightly raised, reached for a bar and tore open the wrapper. Then he reached for another and another, scarfing the chocolate with the fervor of someone who expected he wouldn't see it again. When all the bars were gone except one, Trinh told the translator, "Ask him if he wants to split the Kit Kat."

The translator glanced strangely at Trinh but asked the question anyway. Awad paused, then said indifferently, "Tell him he can have it all."

"There are four sections; we can each have two," Trinh insisted.

Awad finally looked up at his lawyer, who is only one year older than he is, and broke into a grin.

"It was the first time we'd caught him off guard," Trinh says, "and the first time we'd seen him smile."

Of course there's little to smile about in Guantanamo, where Awad and hundreds of other men designated enemy combatants have been incarcerated for years in legal limbo.

The Bush administration has called them "the worst of the worst," and says the men have waged war against the United States and its allies. Some of the prisoners may fit this bill. But in the absence of charges against the detainees or records detailing what the government says they've done, it's impossible to know if the designation is true. Enough prisoners have been released to cast doubt on claims that they're all top terrorists, and only three others have been charged with any crimes.

One of these is Australian David Hicks. The 31-year-old recently signed a plea agreement allowing him to return to Australia for a nine-month sentence before being released. After five years of detainment he was charged in March with providing material support for terrorism. The other two detainees who have been charged with crimes will soon be tried under newly established and controversial military commissions, which allow prosecutors to use evidence based on hearsay and coercion (though not torture), while withholding how they obtained the information.

Of the remaining 383 Guantanamo prisoners (of more than 760 detained since the prison opened in January 2002), the government expects to charge and try up to 70 through military commissions. Another 85 will be transferred to their home countries for further incarceration or release. The remaining prisoners could conceivably be held at Guantanamo indefinitely without being charged.

As far as Trinh knows, Awad falls into the last category, though he admits there's little he knows about the government's plans for his client.

Trinh has represented Awad for more than a year, and still doesn't know all the circumstances around his arrest. The government won't say how or why Awad was detained, and extracting information from his client is a delicate matter. Detainees often suspect lawyers of being undercover interrogators, so asking too many questions can shut them down, says the 26-year-old litigator, who speaks with youthful enthusiasm and occasionally peppers his conversation with "dude" when outside work.

Trinh has met with Awad three times, and most of that time he has spent trying to build his client's trust. What Trinh does know is that Awad comes from a small fishing village outside Aden. His father died when he was young, and he has 10 or 11 siblings (Trinh doesn't know the exact number). One brother sells car parts and repair services in Saudi Arabia, another lives at home with their mother, working odd jobs.

According to Awad, he went to Afghanistan in early to mid-2001, where he was picked up by U.S. forces from a Kandahar hospital later that year and brought to Guantanamo in early 2002. Trinh says Awad wasn't in battle or caught carrying a weapon. "This I'm fairly certain because of the way he's treated (at Guantanamo)," he says, meaning Awad wasn't put in solitary confinement or otherwise punished in the way "high-value" prisoners have been.

Instead, Awad was recovering from losing his right foot when U.S. forces carted him off. He'd been injured in an explosion from an air raid attack on a market where he was shopping and was brought to the hospital unconscious with other victims. Initially, Afghan doctors removed only his foot, but after infection set in, an amputation in Guantanamo took most of his calf. He now has an artificial limb, but because it's not the right height he generally uses a walker.

When asked why Awad went to Afghanistan, Trinh says he doesn't know. "He was a young, listless kid working odd construction jobs. There were madrassas (religious schools) in Afghanistan that were willing to teach him, and it was a way to get away from this small town and from his family and see something different. Growing up in a large family is not easy in any culture."

It's no surprise that Trinh identifies with his client to some degree, given their close ages.

"When I think of how many things have changed since 2001 (for me) -- college, moving away from home -- five years doesn't seem like a long time, but that's missing your senior year of high school, that's missing college," he says. "Imagine your child missing these in a foreign country without knowing why (he's) being held there?"

Trinh doesn't contend that all Guantanamo detainees are innocent, but that they're all entitled to their day in court.

"It's a bedrock of our legal system that you get due process," he says. "Whatever the charge is -- from petty theft to murder one -- you get a hearing, you know the facts against you, you see your accuser." ---

Trinh was born in Washington, D.C. but grew up in Raleigh, N.C., where his family moved when he was a toddler. He has one sibling, a brother who is 10 years younger and still in high school. Both his parents are Vietnamese refugees and software engineers; his father works for Cisco, and his mother for IBM.

His father was a cadet at a military academy in Vietnam when Saigon fell and he escaped with thousands of other refugees. His mother, who met his father at a refugee camp in Missoula, Mont., left a couple of years after Saigon fell when she was 19. Her father had registered as a shrimp fisherman to get permission to own a boat, which the family used to escape.

Trinh studied software engineering as an undergraduate at the University of North Carolina and entered Georgetown law school right after obtaining his undergraduate degree. Many of his classmates were police officers, former military personnel and Pentagon workers who were making mid-life career changes.

He came to his firm, Orrick, Herrington and Sutcliffe, in October 2005, and has been living in San Francisco about a year and a half, working in its Menlo Park office. Most of his friends in the area are friends from Georgetown. One of them is doing pro bono work on an asylum case, making counterarguments against an attorney for the Department of Homeland Security, so the two friends sometimes talk shop and trade tips on dealing with the government.

He still hadn't taken the oath and didn't have a California bar number when the opportunity to take on Guantanamo cases came up. One of the first things he did after taking the oath was to help write an amicus brief in the Hamdan v. Rumsfeld case, in which the Supreme Court ruled that special military commissions the government created to try Guantanamo prisoners violated the Geneva Conventions. The brief contrasted the current war on terror with Barbary Coast piracy that the constitutional fathers had to contend with after the American Revolution.

"One of the first examples of American military action abroad was sending a squadron of frigates to quell the pirates in the Mediterranean," Trinh says. "The pirates, like terrorists, didn't obey the customary laws of war. They never wore uniforms, or would wear fake uniforms. Despite this, the founders still gave them tribunals under international norms and treaties that applied at the time. The thought that you can throw out the Constitution or that it can't apply to situations where we're dealing with people who are outside the bounds of war (as the government contends with the Guantanamo detainees) is not an argument that the founders would have supported, because when they were faced with a similar situation they still played ball with international law."

Trinh spent a week researching historical and esoteric sources for the brief and contributed heavily to the final draft. He says he was never intimidated by the idea that he might have been too junior or too inexperienced to take on such important legal issues.

"Enthusiasm will take you a long way," he says. "I was meeting the deadlines and the feedback seemed very good, and no one ever stopped to question why they were letting a junior attorney do it."

Trinh came to the Guantanamo work in November 2005 after the pro-bono coordinator at his San Francisco-based firm, Orrick, sent a company-wide e-mail asking if there was interest in taking on Guantanamo habeas cases. Habeas is a legal writ designed to get a prisoner held incommunicado access to a lawyer so he can challenge the legality of his detention. Guantanamo prisoners had little hope of such legal aid before 2004 when the Supreme Court ruled (in Rasul v. Bush) that they could petition for habeas in federal court.

Trinh eagerly took the chance to represent a detainee. He'd come to Orrick to practice intellectual property litigation, but studied national security law at Georgetown University as the Jose Padilla and Yaser Hamdi cases (U.S. citizens who, like the foreign nationals held at Guantanamo, challenged the legality of their detentions) reached the Supreme Court.

"I was taking classes with people who were playing major roles on the chessboard of that litigation," Trinh says. "How could I not take this case?"

In fact, his Georgetown instructors included a deputy solicitor general who argued for the government in both these cases, as well as Viet Dinh, who authored the Patriot Act for the Justice Department. Ironically, Trinh and Dinh both come from families who fled Communist Vietnam and have similar understandings of what happens when governments abuse power. Yet they sit on opposite sides of the solicitor's table on Guantanamo and other issues.

"We come out at different ends on policy, but at the end of the day (Dinh's) a brilliant lawyer," Trinh says.

Trinh and several colleagues took on the case of Awad and another Yemeni named Zachariah al Baidany. Trinh has worked primarily with Awad and knows little about al Baidany, who is 32, according to government records.

Trinh is one of about 500 lawyers across the United States representing Guantanamo detainees. They include lawyers from large and small firms as well as students and professors from law school clinics, federal public defenders and solo practitioners. The Center for Constitutional Rights, one of a network of human rights organizations in 140 countries, is co-counsel on all the habeas cases and helps match detainees with lawyers.

Lawyers with CCR filed the first habeas petitions in January 2002 for two Australian and two British citizens -- among them Shafiq Rasul. The detainees' families learned of their incarceration from the International Red Cross and contacted CCR, which teamed up with other lawyers to file the petitions.

"We recognized that Guantanamo was threatening very fundamental rights, and that the Bush administration was establishing a secret prison outside the rule of law that was undermining not just international human rights but our constitutional rights and a legal system that dates back to the Magna Carta," says Gita Gutierrez, a CCR lawyer who was the first habeas lawyer to visit Guantanamo in September 2004.

CCR tread where other legal organizations were reluctant to go. It was only four months after 9/11 when its lawyers filed the first habeas petitions and there was still fear and uncertainty in the country. Gutierrez says no one knew anything about Guantanamo detainees other than what the administration was saying about them -- that they were al Qaeda's top terrorists.

All that changed once the Supreme Court ruled in the Rasul case that detainees had the right to petition for habeas -- thus opening the way for them to meet with defense lawyers for the first time. Suddenly a flood of lawyers came forward, offering to represent detainees. By then photos showing mistreatment of prisoners at Abu Ghraib prison were being released, and prisoners freed from Guantanamo were also talking about mistreatment there.

"People started realizing that everyone in Guantanamo was not an al Qaeda terrorist, and that somewhere along the way something very wrong had happened," Gutierrez says.

The first task was to figure out who was at Guantanamo. In habeas cases, because inmates initially have no access to a lawyer, a relative or close friend has to authorize an attorney to file the habeas petition. To do this, however, CCR needed names of prisoners and their families. The Defense Department had a list of detainees, but wouldn't release it (the department did release it last May after litigation).

Some detainees were known because they'd sent word to their families through the International Red Cross that they were in prison. So CCR worked with local human rights organizations to find the families. Then, once lawyers filed habeas petitions on behalf of them and started meeting with their husbands and sons at Guantanamo and earning their trust, these detainees gave them names of other detainees who wanted representation. Hundreds of petitions were filed in this way.

In December 2005, Trinh and his team filed habeas petitions for both their clients, but it took another six months for Trinh to get access to Awad. First he needed an order from the court granting permission, then he had to undergo a background check to get a security clearance.

He flew down in mid-June last year with an interpreter and another attorney. Forty-eight hours before they arrived, three inmates committed suicide.

"It set the base into a tizzy because up until that point there had been no successful suicides in Guantanamo," Trinh says.

By the army's accounting, 40 inmates had attempted suicide up to that point. The ones who succeeded hanged themselves with their clothing and bed sheets. All three had previously gone on hunger strikes.

Gutierrez and Trinh called the deaths an act of desperation and an inevitable result of detaining people indefinitely without allowing them to see their families; Guantanamo's military commander, Rear Admiral Harry B. Harris, Jr., however, called them an act of "asymmetric warfare against the U.S."

Although Trinh and his colleague were scheduled to meet Awad for two days, they had only one day before the camp went into lockdown while authorities investigated the suicides. Trinh returned a month later, but camp conditions by then were growing more tense, and after that Awad grew suspicious of everyone -- his lawyers, the Red Cross, even letters from his family -- and refused to meet for months. ---

Trinh didn't blame Awad for mistrusting him and the legal system he represented. He mistrusts it a bit himself.

All the foundations of U.S. jurisprudence that he learned in law school and that U.S. attorneys take for granted -- such as attorney-client privilege -- have been up for grabs in Guantanamo, and attorneys have had to fight to hold ground on every issue.

For example, when Gutierrez met with two British clients during her first visit in 2004, she discovered they'd been kept in isolation for 18 and 24 months, respectively, and found authorities had kept and read correspondence one sent her about his legal case.

Things have improved only somewhat since then, says Trinh. Inmates are still kept isolated, and a letter can take "three weeks to never" to reach Awad, he says. Letters go first to the Justice Department to inspect for contraband -- this includes staples, paper clips, news clippings -- then get redacted and sent via private messenger to Guantanamo, where guards "at their convenience" deliver them.

Lawyers are also prohibited from mentioning the Iraq war or other current events to their clients, which can make for strained communication.

"When (Adham) asks me a direct question, he knows I know the answer but I have to tell him I can't tell you," Trinh says. "Such a situation hardly helps to build a trust relationship between attorney and client."

Any notes a lawyer takes during meetings with clients are classified and put in an envelope with a seal before going to a secure facility in D.C. The attorney can request the notes be declassified, but this is a touchy endeavor as it invites the government to read the notes to determine what can be declassified.

"From an attorney's perspective this is just crazy, because you would never let your adversary read through notes with your client," says Diana Rutowski, a colleague of Trinh's who has been representing al Baidany.

Meeting rooms at Guantanamo are also monitored by video cameras, although lawyers have won the battle to have no audio recording. Still, Trinh says most attorneys tell their clients to assume their voices are being recorded.

For about nine months after the Rasul decision, detainees rode a wave of hope that U.S. courts might finally take note of their condition. But that collapsed when Congress passed the Military Commissions Act of 2006 designed to strip detainees of their habeas rights. Lawyers challenged the laws in court but this past February a federal appeals court ruled that the detainees had no habeas rights under the new law. Lawyers have appealed to the Supreme Court, calling the new law unconstitutional, but the court has declined to take the case until detainees exhaust another avenue.

That avenue involves asking a federal court to review the procedures under which the detainees were designated enemy combatants. In 2004 and 2005 most of the current Guantanamo detainees went before a Combatant Status Review Tribunal and came out labeled enemy combatants. No defense attorneys were present at the tribunals, nor were detainees allowed to present documents or witnesses in their defense.

It's the enemy combatant designation that the government says allows it to detain the prisoners. As it now stands, detainees can petition for a review to determine if the tribunal made procedural mistakes -- which could help get a detainee reclassified and possibly released -- but lawyers aren't hopeful. They're also concerned that following the February ruling stripping their clients of habeas rights once again, they may be prevented access to their clients in Guantanamo going forward.

Gutierrez thinks the Supreme Court judges will eventually take up the habeas case and "make the ruling that they need to make" to restore habeas rights to detainees. "But it's very hard for me to see how a lot of men are going to survive (until then)," she says.

In the meantime, Trinh holds out hope that Awad could be released through other means. Each year a detainee is supposed to face an Administrative Review Board -- similar to a parole hearing -- to determine if he still poses a threat or has any remaining intelligence value. If the answer to both questions is no -- maybe the detainee has grown too old or mentally incapacitated -- he can be designated for release or transferred to his home country for continued detention.

More often than not, a detainee's nationality flips the decision in his favor. EU countries, for example, have gotten all their citizens released through diplomatic and political pressure. Yemen has recently made movement in this direction, and Trinh hopes Awad will benefit from that.

More than a year into representing Awad, Trinh is still amazed by the battles he's having to fight for rights considered to be fundamental to the U.S. legal system. He recalls how when he first told his relatives that he was going to Cuba to represent prisoners who had been held for years without a trial, one of his relatives responded, "That's terrible, terrible! How can Castro do such a thing?"